Charles E. Williams v. Hot Shoppes, Inc.

BAZELON, Circuit Judge,

with whom EDGERTON, Circuit Judge, joins (dissenting) .

I agree with the majority that, we should abstain as to the claim under 42 U.S.C.A. § 1983 that § 18-327 Code of Virginia required the restaurant to provide separate facilities for Negro patrons or to exclude them.1 But I think that the complaint states another and independent claim for relief under § 1983 — namely, that appellee’s refusal to serve appellant was compelled by the action of State law enforcement officials in requiring separation of the races in restaurants and was therefore “state action” and conduct “under color of” law within the meaning of the Fourteenth Amendment and § 1983. The abstention technique is inapplicable upon that claim because its validity does not hinge on a question of State law and hence no decision of the Virginia courts could moot the Federal question which it presents. Public Utilities Comm. v. United Fuel Gas Co., 1943, 317 U.S. 456, 463, 63 S.Ct. 369, 87 L.Ed. 396.2

*844In my view this additional claim is sufficiently stated in the following allegations of the complaint: that appellee would not have denied appellant service “except for the understanding [of appellee] that Virginia law * * * compelled the exclusion of colored persons from the restaurant,” and that appellant has been “systematically excluding Negroes from [its] * * * facilities under color ■of § 18-327, Code of Virginia,” this exclusion having been “produced by the interplay of governmental and private action over a long period of time."

My brethren of the majority find these allegations insufficient. As I read their opinion, they reach this determination by attributing to appellant a specific intent to rely solely on the applicability of § 18-327, Code of Virginia, in order to meet the statement of the United States Court of Appeals for the Fourth Circuit3 that reliance upon a “positive provision of state law” was essential to a valid claim in these cases. There is serious question whether the meaning of appellant’s present allegations may be derived from inferences drawn from such extraneous matter. But even if it may, the allowable inference would be only that appellant sought to rely on a “positive provision of state law,” not that he relied on nothing else to establish that the State or its officers maintained and enforced segregation in restaurants.

I read the above described allegations as charging that appellee excluded the appellant because of appellee’s “understanding” that it was required by law to do so, and that this understanding was “produced by the interplay of governmental and private action over a long period of time.” To restrict proof of the basis of appellee’s “understanding” to a State statute ignores settled principles of modern pleading. Rule 8(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A. states, “all pleadings shall be so construed as to do substantial justice.” This “excludes requiring technical exactness, or the making of refined inferences against the pleader, and requires an effort fairly to understand what he attempts to set forth.” DeLoach v. Crowley’s, Inc., 5 Cir., 1942, 128 F.2d 378, 380. In light of these principles, the allegations of the complaint are sufficient to admit evidence that appellee’s “understanding” was compelled by governmental officials acting under their apparent authority.4 It is “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, emphasis supplied. To require, as I think the majority does, that the complaint further particularize the officer’s conduct and appellee’s awareness of such conduct is to require appellant to plead his evidence. The Federal Rules do not require a statement of “facts sufficient to constitute a cause of action.” See Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774, 775.

I turn now to the legal sufficiency of the claim that appellee’s refusal to serve appellant is attributable to the State because it was compelled by conduct of State officials. Since the Supreme Court’s decision in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and subsequent cases,5 *845there can no longer be any serious doubt that freedom from state imposed racial segregation is a right “secured by the Constitution and laws” of the United States.6 The difficult question is whether the alleged State-compelled refusal of appellee may be deemed conduct “under color of” law for the purposes of § 1983. I think an affirmative answer is required by recognized principles which have evolved in Fourteenth Amendment adjudication.

In determining the scope of the Fourteenth Amendment, and consequently § 1983, the bare rubric that it applies only to “state action” as opposed to “private conduct” is, without more, of little aid. A state can act only through human representatives, 7 and unless the prohibitions of the Amendment, and the legislation designed to enforce them, apply to these representatives, they are without meaning. Ex Parte Virginia, 1879, 100 U.S. 339, 347, 25 L.Ed. 676.

If a state statute affirmatively required restaurant owners to segregate their facilities or exclude Negro patrons, conduct of the restaurant owners caused solely by the compulsion of such a statute would be state action and would give rise to a claim for relief under § 1983. The decisions of the Supreme Court in the “white primary” cases clearly indicate that, at the very least, a state cannot avoid the prohibitions of the Fourteenth and Fifteenth Amendments by delegating to private groups or institutions the enforcement of a policy which, if enforced by the state would be contrary to the Constitution. See Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Nixon v. Condon, 1932, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984. Cf. Terry v. Adams, 1953, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Rice v. Elmore, 4 Cir., 1947, 165 F.2d 387, certiorari denied, 1948, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151. And where the policy is one of racial segregation constituting an unreasonable classification under the Equal Protection Clause of the Fourteenth Amendment,8 the initiation and enforcement of that policy by “instrumentalities” of the State gives rise to a claim for relief under the Civil Rights Act. See Smith v. Allwright, supra; Kerr v. Enoch Pratt Free Library of Baltimore City, 4 Cir., 1945, 149 F.2d 212, certiorari denied, 1945, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427. If the policy of segregation is initiated by the state legislature rather than by a private organization acting as a state “instrumentality” or exercising a “state function,” whose action can therefore be imputed to the state, then, a fortiori, enforcement of that policy is prohibited by the Amendment and the implemental civil *846rights legislation. When otherwise private persons or institutions are required by law to enforce the declared policy of the state against others, their enforcement of that policy is state action no less than would be enforcement of that policy by a uniformed officer. Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780; Flemming v. South Carolina Electric & Gas Co., 4 Cir., 1955, 224 F.2d 752, appeal dismissed, 1956, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439. “The pith of the matter is simply this, that when [private groups] * * * are invested with an authority independent of the will of the association in whose name they undertake to speak, they become to that extent the organs of the state itself, the repositories of official power.” Nixon v. Condon, supra, at page 88, of 286 U.S., at page 487 of 52 S.Ct. Since a uniformed officer’s enforcement of a statute requiring segregated facilities would give rise to a claim for redress under § 1983, similar enforcement by a delegated representative of the State, although ostensibly a private individual, likewise would be actionable. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 81 S.Ct. 856, 860.

In asserting the claim here discussed, appellant does not contend that appellee’s refusal to serve him was authorized or required by a positive provision of Virginia law; but rather that its refusal was caused solely by the understanding generated by the conduct of State law enforcement officials that such conduct was required by law. If appellant can prove this, he is entitled to relief. For if appellee was required by State officials acting “under color of law” to segregate its facilities or to exclude Negroes, its conduct was likewise State action and “under color of law” no less than if it had been required by an unambiguous mandate of the Virginia legislature. If the State clothed its officials with the apparent authority to enforce segregation or exclusion of Negroes in public places,9 and if these officials, acting by virtue of their office and purportedly pursuant to State law, by their conduct led appellee to understand and believe in good faith that it was required by law to exclude Negroes, then the appellee’s action in excluding the appellant is attributable to the State.10 For Fourteenth Amendment purposes it matters not that the policy of racial segregation originated in the executive rather than the legislative or judicial branch of the State government. “Whether the statute-book of the state actually laid down any such rule * * *, or not the state, through its officer, enforced such a rule: and it is against such state action, through its officers and agents, that the last clause” of the Fourteenth Amendment and the Civil Rights Acts are “directed." Civil Rights Cases, 1883, 109 U.S. 3, 15, 3 S.Ct. 18, 24, 27 L.Ed. 835 (referring to the Court’s decision in Ex Parte Virginia, supra). It is well established that conduct of State officials may constitute State action even though it is contrary to State law and subject to correction by higher State authority. United States v. Raines, supra.

Appellee contends that it could have segregated its facilities or excluded Negroes free from Federal restraint, and that the additional presence of State compulsion does not change its conduct into State action. Admittedly, appellee, had it so desired as a matter of corporate policy, could have chosen to engage in such conduct without offending the Federal Statute. Civil Rights Cases, supra. But, by its motion to dismiss appellee *847admits, for the purposes of testing the sufficiency of the complaint,11 that its exclusion of appellant was caused solely by the mandate of Virginia expressed through its apparently authorized officials and not by any exercise of private volition. Whether appellee, apart from this alleged compulsion, would have excluded appellant because of his color is a question of fact which is properly to be determined at trial.

Although the alleged official conduct required segregation, appellee excluded appellant. No significance, however, can be attached to this distinction. Appellee was left only the option of either segregating or excluding Negroes. That it was “free to choose” between segregation and exclusion does not make its election of either a matter of “choice” in the sense of response to private volition rather than public command. Appellee was compelled to choose. Whichever alternative it chose, its action would have been undertaken, according to the complaint’s allegations, only because of the compulsion of the State.

The nature of the relief available under § 1983 is worthy of comment. That section speaks of granting relief in “an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis supplied.) Whatever may be said about the initial congressional purpose in enacting this legislation, in the last twenty years the expansion of the state action concept12 and of the area of rights protected by the Federal Government13 have made this section an increasingly flexible vehicle for enforcing the Constitution’s guarantees of individual liberties against encroachment by the states and their representatives. The relief provisions of the statute are strikingly adaptable for that purpose. The present case demonstrates this. If, in fact, appellee’s refusal to serve appellant was compelled against its will, principles of equity combine with the purpose of the Act to dictate relief which would also shield appellee against such compulsion, rather than penalize appellee by imposing damages for surrendering to it. This is available under the flexible relief provisions of the statute by a declaratory judgment vindicating appellant’s right to be free from state-imposed racial discrimination. For such relief, an actual controversy is required. Evers v. Dwyer, 1958, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed. 2d 222. A declaratory judgment would have real meaning and purpose.14 It would vindicate a civil right basic to human dignity, equality before the law. As the Fifth Circuit has said in recent suits to declare State imposed segregation invalid, “many, if not most, civil rights actions and those to redress denial of equal privileges and immunities are to obtain a declaration * * * of a constitutional prerogative * * * which is being ignored or denied by the defendant.” Baldwin v. Morgan, supra, at page 787, of 251 F.2d. And “in a suit of this kind plaintiffs have an absolute right to have their constitutional right declared * * Jackson v. Rawdon, 5 Cir., 1956, 235 F.2d 93, 96.

*848The complaint seeks not only damages but also “such other and further relief as to the Court may seem just and proper.” Even if no relief other than damages were requested, the District Court is empowered to grant the relief to which appellant proves that he is entitled at trial. Rule 54(c), Fed.R.Civ.P.; Blazer v. Black, 10 Cir., 1952, 196 F.2d 139; Keiser v. Walsh, 1941, 73 App.D.C. 167, 118 F.2d 13.

Finally the majority opinion asserts that to recognize appellant’s claim under § 1983 would make the courts of the District of Columbia a possible forum for similar claims arising in any State. This is hardly a valid reason for denying relief. In any event, it overlooks the requirements of personal jurisdiction and venue and our power under 28 U.S.C. § 1404(a) to transfer a case to a more convenient forum.

Appendix

Commonwealth of Virginia

Office of

The Attorney General

Richmond

August 24, 1960

Honorable C. E. Cuddy

Commonwealth’s Attorney for the City of Roanoke

Roanoke, Virginia

Dear Mr. Cuddy:

I am in receipt of your letter of August 23, 1960, which reads, in part, as follows:

“I would appreciate it if you would advise me whether or not in your opinion Section 18.1-356 of the Code of Virginia is applicable to restaurants, hotel dining rooms or lunch counters that are operated by merchants in their stores or places of business.
“If this section is not applicable, is there any statute in your opinion which requires separation of the races in eating establishments?”

Sections 18.1-356 and 18.1-357 of the Virginia Code comprise Article 6, Chapter 7, Title 18.1 of the Code of Virginia (1960), and respectively provide:

“§ 18.1-356. Duty to separate races at public assemblages. — Every person, firm, institution or corporation operating, maintaining, keeping, conducting, sponsoring or permitting any public hall, theatre, opera house, motion picture show or any place of public entertainment or public assemblage which is attended by both white and colored persons shall separate the white race and the colored race and shall set apart and designate in each such public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage, certain seats therein to be occupied by white persons and a portion thereof, or certain seats therein, to be occupied by colored persons and any such person, firm, institution or corporation that shall fail, refuse or neglect to comply with the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars for each offense.” (Italics supplied.)
“§ 18.1-357. Failure to take space assigned in pursuance of preceding section. — Any person who fails, while in any public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage, to take and occupy the seat or other space assigned to them in pursuance of the provisions of the preceding section by the manager, usher or other person in charge of such public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage, or whose duty is to take up tickets or collect the admission from the guests therein, or who shall fail to obey the request of such manager, usher or other person, as aforesaid, to change his seat from time to time as occasion requires, in order that the preceding section may be *849complied with, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than ten dollars nor more than twenty-five dollars for each offense. Furthermore, such person may be ejected from such public hall, theatre, opera house, motion picture show or other place of public entertainment or public assemblage by any manager, usher or ticket taker, or other person in charge of such public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage, or by a police officer or any other conservator of the peace, and if such person ejected shall have paid admission into such public hall, theatre, opera house, motion picture show or other place of public entertainment or public assemblage, he shall not be entitled to a return of any part of the same.” (Italics supplied.)

Initially, it should be noted that the above-quoted statutes are penal in character and must be strictly construed. Moreover, the rules of efusdem generis and nosciUir a sociis are clearly applicable in construing the general phrase “place of public entertainment or public assemblage” appearing therein. When the statutes under consideration are interpreted in light of these principles, I am constrained to believe that your initial inquiry should be answered in the negative.

So far as I have been able to ascertain, the leading case in Virginia involving the application of the above-stated rules of construction to a penal statute is Gates and Son Co. v. City of Richmond, 108 Va. 702, 49 S.E. 965. In that case, the defendant, a corporation whose principal place of business was located on Fourteenth Street in the City of Richmond, was convicted in the trial court for an alleged violation of a penal ordinance of the city prohibiting any person from constructing or placing “any portico, porch, door, window, step, fence, or other projection” which extended into any street. The specific obstruction there under consideration was a movable “gangplank” or “skid” some twelve feet in length, which extended from the front door of defendant’s place of business across the sidewalk to delivery wagons in the street.

Utilizing the same rules of construction which I believe are indispensable to the proper'resolution of the questions you present, the Supreme Court of Appeals of Virginia reversed the judgment of conviction entered by the trial court. With respect to the character of the ordinance under consideration and its proper construction, the Court pointed out (103 Va. at 704 [49 S.E. at 965]):

“This is a penal ordinance, and is, therefore, to be construed strictly. It is not to be extended by implication, and must be limited in its application to cases clearly described by the language employed. The books abound with cases illustrating this principle, which is of universal application, except in particular instances in which the doctrine has been modified by statute * * *.
» * * * * *
“These and many other cases which could be cited to the same effect, tend to illustrate the jealousy with which courts regard any substantial departure from this time-tested canon of construction. Its violation involves a most dangerous innovation, and places persons accused of crime at the mercy and arbitrary discretion of the judge who may chance to preside in the particular case.”

In support of this view, the Court quoted the following language of Marshall, C. J., in United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37:

“The rule that penal laws are to be construed strictly is, perhaps not much less old than construction itself. It is founded in the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in *850the legislative, not the judicial, department * * *. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves do not suggest. To determine that a case is within the intention of a statute its language must authorize us to say so.
“It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of kindred character with those which are enumerated.”

See, Jennings v. Commonwealth, 109 Va. 821, 63 S.E. 1080 [21 L.R.A.,N.S., 265]; Withers v. Commonwealth, 109 Va. 837, 65 S.E. 16; Sellers v. Bles, 198 Va. 49, 92 S.E.2d 486.

The Court also pointed out that the “kindred principles” of ejusdem generis and noscitur a sociis must also be considered in ascertaining the correct interpretation of the ordinance there under consideration. These two rules of construction are well stated in 17 M.J. 325, Statutes: Section 62, and 17 M.J. 327, Statutes: Section 63, respectively, in the following language:

“When a particular class of persons or things is spoken of in a statute and general words follow, the class first mentioned must be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class, the effect of general words when they follow particular words being thus restricted. Things exceptional in character are never legally deemed to be included or embraced in general terms of disposition, prohibition or regulation of a class or classes of normal or ordinary subjects mentioned. This principle is the basis or meaning of the rule ejusdem generis.
* * * * « * ^
“It is a fundamental rule of construction that in accordance with the maxim ‘noscitur a sociis’ the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated. Language, though apparently general, may be limited in its operation or effect where it may be gathered from the intent and purpose of the statute that it was designed to apply only to certain persons or things, or was to operate only under certain conditions.
“In the interpretation of statutes, words and phrases therein are often limited in meaning and effect by necessary implications arising from other words or clauses thereof * * Also, a specific enumeration of words or objects, as a rule, controls general words which follow, and limits them in their operation to others of like kind.”

Supportive of the foregoing statements are numerous decisions of the Supreme Court of Appeals of Virginia: Gates and Son Co. v. City of Richmond, supra; Standard Ice Co. v. Lynchburg Diamond Ice Factory, 129 Va. 521, 106 S.E. 390; Rockingham Cooperative Farm Bureau v. [City of] Harrisonburg, 171 Va. 339, 198 S.E. 908; East Coast Freight Lines v. City of Richmond, 194 Va. 517, 74 S.E.2d 283; Sellers v. Bles, supra.

Having indicated the various rules of construction requisite to the proper resolution of the question presented in the Gates case, supra, the Court concluded (103 Va. at 707 [49 S.E. at 966]):

“Applying the foregoing well-settled principles to the case in judgment, it is quite apparent that the offense charged is not embraced by the provisions of the ordinance under consideration. The ordinance is plainly intended to apply to obstructions and encroachments on the streets of a permanent character, and cannot without unwarranted enlargement of the ordinary scope and *851meaning of the language used, be made to embrace temporary obstructions such as are caused by the use of skids and similar appliances employed in loading and unloading wagons.
“If in the judgment of the city council the use made of the streets in this instance amounts to an undue interference with the rights of the public, the evil can be remedied by appropriate legislation. But the courts must construe the ordinance as they find it, and cannot enlarge its operation to meet the exigencies of particular cases.”

Analysis of the language of Sections 18.1-356 and 18.1-357 of the Code of Virginia furnishes significant internal support for the view that the rules of ejusdem generis and noscitur a sociis apply with special emphasis in delineating the proper scope of these statutes and that the general phrase, “any place of public entertainment or public assemblage” must be interpreted as restricted to places of the same class as those denominated by the immediately preceding specific terms. Although the general phrase in question is repeated seven times in the two enactments, it is never isolated from — but in each instance appears in conjunction with- — the antecedent specific terms, “public hall, theatre, opera house” and “motion picture show.” It is manifest that these specific terms embrace places of public entertainment customarily attended by large groups of people who are usually present collectively for protracted periods of time. By contrast, drugstores, variety stores, lunch counters, restaurants and cafeterias are not places of public entertainment and are usually attended by groups of people who are present only temporarily for the purpose of inspecting or purchasing merchandise or meals. Certainly, the particular establishments concerning which you inquire are not expressly embraced in the statute, and I am constrained to believe that such establishments are not of the same class as those which are specifically mentioned. Moreover, as previously indicated, the statutes under consideration must be limited in their application to cases clearly described by the language employed, and the scope of the enactments may not be extended by implication.

In light of the principles heretofore discussed, and the decision of the Supreme Court of Appeals of Virginia in Gates and Son Co. v. City of Richmond, supra, I am of the opinion that drugstores, variety stores, restaurants, lunch counters and cafeterias should not be deemed to be included within the ambit of Sections 18.1-356 and 18.1-357 of the Code of Virginia.

I am not advised of any statute in Virginia which requires separation of the races in eating establishments. Such separation is, in the discretion of the owner of such an establishment, permissible.

Section 18.1-173 of the Code deals with the offense of trespass and it is designed to protect the rights of the owner or those in lawful control of private property. Under this statute, any person who shall, without authority of law, go upon the premises of another, after having been forbidden to do so, either orally or in writing, is guilty of a misdemeanor. Therefore, while there is no statute which requires separation of the races in eating establishments, there is a statute which protects the owner whose policy is to separate the races and who does, in fact, operate a segregated restaurant or other eating establishment.

Very truly yours,

[Albertis S. Harrison, Jr.] Attorney General.

ASHjr/w

. I also concur in the result reached by the majority with respect to appellant’s claim under §§ 1 and 2 of the Civil Eights Act of 1875. I do this on the authority of Butts v. Merchants & Miners Transportation Co., 1913, 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422. Although subsequent decisions have cast considerable doubt on the reasoning of that case, see Wormuth, The Present Status of the Civil Eights Act of 1875, 6 Utah L.Rev. 153 (1958), I think that the latest expression of the Supreme Court in United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524, points to a reaffirmation of Butts as an exception to the general rule announced in Eaines that a statute will be held unconstitutional only as applied to the particular facts presented in an actual case or controversy.

. It may be argued that the existence of the remaining claim renders abstention inappropriate as to the entire case. Cf. Louisiana Power & Light Co. v. City of Thibodaux, 1959, 360 U.S. 25, 27, 79 S.Ct. 1070, 3 L.Ed.2d 1058.

. Williams v. Howard Johnson’s Restaurant, 1959, 268 F.2d 845.

. Because of the importance of the interests involved in a case of this nature, we should exercise a broad degree of discretion in reading the allegations of the ■complaint so as to do substantial justice. Cf. Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780, where, in reversing the dismissal of a complaint for relief ■under § 1983, the court found that the allegations stated a valid claim under § 1985(3) as well, although no violation of that section was alleged. The court stated that its duty was to apply the appropriate civil rights statute irrespective of whether it had been correctly described in the complaint or not.

. E. g., New Orleans City Park Improvement Ass’n v. Detiege, 1958, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46, affirming 1 Cir., 1958, 252 F.2d 122 (park and *845recreational facilities) ; Gayle v. Browder, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming D.C.M.D.Ala.1956, 142 F.Supp. 707 (intrastate bus transportation) ; Holmes v. City of Atlanta, 1955, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776, reversing 5 Cir., 1955, 223 F.2d 93 (golf courses); Mayor and City Council of Baltimore City v. Dawson, 1955, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774, affirming 4 Cir., 1955, 220 F.2d 386 (public beach and bathhouse). Cf. Burton v. Wilmington Parking Authority, 81 S.Ct. 856 (restaurants).

. In the following cases, claims under | 1983 against State imposed racial segregation have been sustained: Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780; Flemming v. South Carolina Electric & Gas Co., 4 Cir., 1955, 224 F.2d 752, appeal dismissed, 1956, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439; Kerr v. Enoch Pratt Free Library of Baltimore City, 4 Cir., 1945, 149 F.2d 212, certiorari denied, 1945, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427.

. “The test is not whether [they] * * * are the representatives of the state in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as representatives of the state to such an extent and in such a sense that the great restraints of the Constitution set limits to their action.” Nixon v. Condon, 1932, 286 U.S. 73, 89, 52 S.Ct. 484, 487, 76 L.Ed. 984.

. Gayle v. Browder, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming D.C.M.D.Ala.l956, 142 F.Supp. 707; Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.

. Cf. Valle v. Stengel, 3 Cir., 1949, 176 F.2d 697.

. In determining whether the State officials did in fact conduct themselves as appellant contends, it matters not whether they were motivated by the mistaken belief that § 18.1-356 applied to restaurants or by a community custom. However, evidence upon these matters would, if available, be relevant upon the issue of whether appellee actually did understand that it was required by the State officials to exclude Negroes.

. Callaway v. Hamilton Nat. Bank of Washington, 1952, 90 U.S.App.D.C. 228, 195 F.2d 556; Bolger v. Marshall, 1951, 90 U.S.App.D.C. 30, 193 F.2d 37.

. E. g., Terry v. Adams, 1953, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Marsh v. State of Alabama, 1946, 326 U.S. 501, 66 S. Ct. 270, 90 L.Ed. 265; Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987.

. E. g., Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; Hague v. Committee for Industrial Organization, 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

. Speaking to the question of the requirement of a jurisdictional amount in civil liberties cases, Mr. Justice Stone stated, “[U]nconstitutional infringement of a right of personal liberty [is] not susceptible of valuation in money.” Hague v. Committee of Industrial Organization, 1939, 307 U.S. 496, 531, 59 S.Ct. 954, 971, 83 L.Ed. 1423 (concurring opinion). Clearly, judicial vindication of appellant’s rights is the paramount element of redress.